Zarfati v McMillan (No 2) [2023] NSWSC 1414

Zarfati v McMillan (No 2) [2023] NSWSC 1414

The plaintiff failed to pay the $205,000 costs and failed to provide the $155,000 security for costs within 42 days of 18 July 2023, or at all. Under the self-executing orders made by consent on 21 April 2023, that non-compliance caused the proceedings to be dismissed, and it was appropriate to formally record...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 November 2023
Procedural Posture
Civil Procedure Procedural Ruling / Directions Hearing to Confirm Dismissal Following Non Compliance With Prior Self Executing Consent Orders
Outcome
Proceedings dismissed; outstanding notices of motion dismissed; plaintiff ordered to pay the defendants' costs of the proceedings except for costs already the subject of prior costs orders.
Legal Topics
['dismissal of Proceedings' 'self Executing Orders' 'security for Costs' 'costs Orders' 'liberty to Apply' 'finality of Orders']
['civil Procedure'] ['dismissal of Proceedings' 'self Executing Orders' 'security for Costs' 'costs Orders' 'liberty to Apply' 'finality of Orders']

Source-derived case record

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Procedural Posture

Civil Procedure Procedural Ruling / Directions Hearing to Confirm Dismissal Following Non Compliance With Prior Self Executing Consent Orders

Legal Issues

  1. 1 ['Whether the proceedings had been dismissed by operation of prior self-executing orders requiring payment of costs and provision of security for costs within 42 days.' "Whether it was appropriate to record or order dismissal of the proceedings following the plaintiff's non-compliance." 'Whether liberty to apply should be granted or noted in a way that could permit variation of the substance of a costs order.' 'What orders should be made concerning the outstanding notices of motion and costs of the proceedings.']

Ratio Decidendi

The plaintiff failed to pay the $205,000 costs and failed to provide the $155,000 security for costs within 42 days of 18 July 2023, or at all. Under the self-executing orders made by consent on 21 April 2023, that non-compliance caused the proceedings to be dismissed, and it was appropriate to formally record dismissal and order the plaintiff to pay the defendants' remaining costs. The proposed liberty to apply order was not appropriate because liberty to apply cannot be used to vary the substance of final orders.

Court Disposition

Proceedings dismissed; outstanding notices of motion dismissed; plaintiff ordered to pay the defendants' costs of the proceedings except for costs already the subject of prior costs orders.

Orders

  • ["Prayer 6 of the defendants' notice of motion filed on 27 January 2023 be dismissed, with no order as to costs, as between the defendants and James Patrick Pope." "The plaintiff's notice of motion filed on 25 January 2023 and the defendants' notice of motion filed on 27 January 2023 are otherwise dismissed." "The...